I have practiced in Virginia's appellate courts for over 40 years, and practiced family law almost exclusively since 1983. Since 1991 I have analyzed every significant Virginia family law appeal case for the Virginia State Bar's "Family Law News" quarterly. This blog contains both past and current case notes. I try to comment on the ongoing development of the law, and help other lawyers, journalists and the public understand individual cases. Individual case notes aimed to be accurate when written but are not updated as the law evolves. - Richard Crouch

March 12, 2012

APPEALS – EVIDENCE — TRIAL JUDGE DISCRETION – LOCAL STANDARDS – “SAW AND HEARD THE WITNESSES” RULE. Lawyers who feel that they have been hometowned, or home-cooked, upon venturing out of their own briar patch, may want to know how the Court of Appeals thinks about these things. A Shifflett case from Nelson County points up how Their Honors respect what the local boys and girls on the bench know, feel and believe informs the trial-judge-discretion rule that we hear so much about in family law. An unusually direct and candid statement of the appellate attitude, abeit eloquent withal, is set forth in the case of Shifflett v. Commonwealth, 716 S.E.2d 132, 58 Va. App. 732 (8/11/11), involving a Fourth Amendment decision on probable cause to stop the pickup truck of a local farmer or farm worker and arrest him. The charges were, unsurprisingly, driving an unregistered, uninspected and uninsured vehicle with a farm use tag, and driving drunk, and the Court of Appeals unleashes the judge who is easily its most eloquent and elegant prose-stylist – at least when it comes to abstract concepts – on this poor rustic’s case. A reading of this case is recommended, but direct quotation is probably the best way to convey what took place here. Shifflett’s lawyer invoked the Fourth Amendment, and the prosecutor argued, as the Court of Appeals agrees, that practical circumstances justified a reasonable suspicion “that Shifflett – at the time of the stop – might not have been using his unregistered pickup truck consistent [sic] with the statutory exemptions governing farm use vehicles.” The lawyers were talking, of course, about the somewhat confusing statutory provision, awkwardly written in four different statutes, of which the first one, Code Section 46.2-670, actually involved only travel from saw mills, and the second, §46.2-672, involved only the transportation of unginned cotton, peanuts or fertilizer. The more general statute for farm use contemplates agriculture use, but also permits (§46.2-673) making a return trip from a market place or a store and transporting food and other supplies “to a farm” if the returning vehicle is one “exempted from registration” under the earlier statutes. Judge Kelsey cites several circumstances to support the cause-probability, conclusion: that the truck “displayed a store-bought farm use tag” instead of a genuine home made one (Huh? Well maybe it’s akin to betraying yourself un-country by using instant grits.) Also there were three people in the cab, and finally the clincher: that the truck “traveled” north on Route 151 in Nelson County at nearly 10:00 pm in the dead of winter after a snowstorm.” These facts were “further amplified” by what some might consider the State Trooper’s concluding from his observations, or at least his summary thereof, that “in the winter time you don’t see many farm use vehicles on the road.” (Also, perhaps, the best of circumstances for fortifying yourself with a little antifreeze, but not, in hindsight, a good idea.) Anyway the trial judge apparently thought “No, you don’t,” believed the cop, believed the cause probable, and upheld the stop. The rest is precedential history.

Judge Kelsey explains, “to those outside the local community, these circumstances may mean very little. Under settled law, however, a trial judge applying the Fourth Amendment ‘views the facts of a particular case in the light of its distinctive features and events of the community.’” (Which perhaps you didn’t know, but it’s from Ornelas v. U.S., 517 US 690 (1996).) Judge Kelsey continues, “and these background facts, though rarely a subject of explicit findings, informed the judge’s assessment of the historical facts.” And perhaps most helpful of all, “Given a trial judge’s unique capacity to conceptualize the facts, appellate courts give ‘due weight’ to the inferences drawn ‘by resident judges … applying … principles to fact patterns unique to their local communities.” The Judge further explained, “We acknowledged Shifflet’s complaint that the trial court’s analysis, which we adopt as our own, relies heavily on generalities. But, truth be told, it is supposed to be this way. The reasonable suspicion standard itself is a ‘somewhat abstract’ and ‘elusive concept’ that cannot be reduced to a ‘neat set of legal rules.’ [Citations omitted]” Well. For a well turned phrase, you got to admit, you cain’t beat that with a stick. To conclude, the opinion tells us that “we thus find it unnecessary to find or develop a grid of all possible lawful uses of an unregistered farm vehicle [I’ll tell thee, friend, farmers have to.] … to determine whether the facts convincingly negate each hypothesized use.” Rejecting use of such a grid, Judge Kelsey goes on a right smart piece into doing exactly so, garnering (to invoke an agricultural metaphor that’s already a little too much in vogue these days), along with the previously-cited statutes, Subsections 665(A) and 665(B)(2) (letting you go 30 miles from one of your farms to another). And, not to put too fine a point on it, explains how that means “picking up a plow from another farm would certainly qualify, while [aw, shucks] picking up a case of beer to drink on the ride home would not.” Now the next question, presumably, would be not about a case of beer that you do not drink. Well, that is, not entirely, anyway – on the way home, but that’s another story. This Judge’s agile mind and facile pen carried him into further instructive speculations, for which a full reading of the opinion is truly recommended. ULTIMATE LESSON: When that ol’ judge on the bench says “Contextualize me,” you better watch out.

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APPEALS – EVIDENCE — TRIAL JUDGE DISCRETION – LOCAL STANDARDS – “SAW AND HEARD THE WITNESSES” RULE. Lawyers who feel that they have been hometowned, or home-cooked, upon venturing out of their own briar patch, may want to know how the Court of Appeals thinks about these things. A Shifflett case from Nelson County points up how Their Honors respect what the local boys and girls on the bench know, feel and believe informs the trial-judge-discretion rule that we hear so much about in family law. An unusually direct and candid statement of the appellate attitude, abeit eloquent withal, is set forth in the case of Shifflett v. Commonwealth, 716 S.E.2d 132, 58 Va. App. 732 (8/11/11), involving a Fourth Amendment decision on probable cause to stop the pickup truck of a local farmer or farm worker and arrest him. The charges were, unsurprisingly, driving an unregistered, uninspected and uninsured vehicle with a farm use tag, and driving drunk, and the Court of Appeals unleashes the judge who is easily its most eloquent and elegant prose-stylist – at least when it comes to abstract concepts – on this poor rustic’s case. A reading of this case is recommended, but direct quotation is probably the best way to convey what took place here. Shifflett’s lawyer invoked the Fourth Amendment, and the prosecutor argued, as the Court of Appeals agrees, that practical circumstances justified a reasonable suspicion “that Shifflett – at the time of the stop – might not have been using his unregistered pickup truck consistent [sic] with the statutory exemptions governing farm use vehicles.” The lawyers were talking, of course, about the somewhat confusing statutory provision, awkwardly written in four different statutes, of which the first one, Code Section 46.2-670, actually involved only travel from saw mills, and the second, §46.2-672, involved only the transportation of unginned cotton, peanuts or fertilizer. The more general statute for farm use contemplates agriculture use, but also permits (§46.2-673) making a return trip from a market place or a store and transporting food and other supplies “to a farm” if the returning vehicle is one “exempted from registration” under the earlier statutes. Judge Kelsey cites several circumstances to support the cause-probability, conclusion: that the truck “displayed a store-bought farm use tag” instead of a genuine home made one (Huh? Well maybe it’s akin to betraying yourself un-country by using instant grits.) Also there were three people in the cab, and finally the clincher: that the truck “traveled” north on Route 151 in Nelson County at nearly 10:00 pm in the dead of winter after a snowstorm.” These facts were “further amplified” by what some might consider the State Trooper’s concluding from his observations, or at least his summary thereof, that “in the winter time you don’t see many farm use vehicles on the road.” (Also, perhaps, the best of circumstances for fortifying yourself with a little antifreeze, but not, in hindsight, a good idea.) Anyway the trial judge apparently thought “No, you don’t,” believed the cop, believed the cause probable, and upheld the stop. The rest is precedential history.

Judge Kelsey explains, “to those outside the local community, these circumstances may mean very little. Under settled law, however, a trial judge applying the Fourth Amendment ‘views the facts of a particular case in the light of its distinctive features and events of the community.’” (Which perhaps you didn’t know, but it’s from Ornelas v. U.S., 517 US 690 (1996).) Judge Kelsey continues, “and these background facts, though rarely a subject of explicit findings, informed the judge’s assessment of the historical facts.” And perhaps most helpful of all, “Given a trial judge’s unique capacity to conceptualize the facts, appellate courts give ‘due weight’ to the inferences drawn ‘by resident judges … applying … principles to fact patterns unique to their local communities.” The Judge further explained, “We acknowledged Shifflet’s complaint that the trial court’s analysis, which we adopt as our own, relies heavily on generalities. But, truth be told, it is supposed to be this way. The reasonable suspicion standard itself is a ‘somewhat abstract’ and ‘elusive concept’ that cannot be reduced to a ‘neat set of legal rules.’ [Citations omitted]” Well. For a well turned phrase, you got to admit, you cain’t beat that with a stick. To conclude, the opinion tells us that “we thus find it unnecessary to find or develop a grid of all possible lawful uses of an unregistered farm vehicle [I’ll tell thee, friend, farmers have to.] … to determine whether the facts convincingly negate each hypothesized use.” Rejecting use of such a grid, Judge Kelsey goes on a right smart piece into doing exactly so, garnering (to invoke an agricultural metaphor that’s already a little too much in vogue these days), along with the previously-cited statutes, Subsections 665(A) and 665(B)(2) (letting you go 30 miles from one of your farms to another). And, not to put too fine a point on it, explains how that means “picking up a plow from another farm would certainly qualify, while [aw, shucks] picking up a case of beer to drink on the ride home would not.” Now the next question, presumably, would be not about a case of beer that you do not drink. Well, that is, not entirely, anyway – on the way home, but that’s another story. This Judge’s agile mind and facile pen carried him into further instructive speculations, for which a full reading of the opinion is truly recommended. ULTIMATE LESSON: When that ol’ judge on the bench says “Contextualize me,” you better watch out.